Comment by saalweachter

The Ninth Amendment, my friend:

  “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

When the Supreme Court "creates" new rights, they are acting under the aegis of the Ninth Amendment, and simply recognizing a right that is retained by the people. For all fundamental rights to be explicitly enumerated in the Constitution is something that the Founders explicitly knew they could not do.